United States v. Dang

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-17529
Plaintiff-Appellee, D.C. No.
v.  CV-01-01514-WBS/
THI MARILYN DANG, DAD
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding

Argued and Submitted
December 7, 2006—San Francisco, California

Filed May 24, 2007

Before: Michael Daly Hawkins, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

6177
6180 UNITED STATES v. DANG

COUNSEL

James P. Mayo, Segal & Kirby, Sacramento, California, for
the appellant.
 UNITED STATES v. DANG 6181
Peter D. Keisler, Barry J. Pettinato, and Patricia M. Corrales-
Talleda, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Los Angeles, California, for the
appellee.

OPINION

THOMAS, Circuit Judge:

This appeal presents the question, among others, as to the
constitutionality and validity of the Department of Homeland
Security’s regulation pertaining to assessment of good moral
character in naturalization proceedings. We conclude that the
regulation passes constitutional muster and is not ultra vires
as to its governing statute. We affirm the judgment of the dis-
trict court.

I

After thirteen years of lawful permanent residence, Marilyn
Thi Dang filed an Application for Naturalization with the
Immigration and Naturalization Service (“INS”) on June 28,
1995. On February 2, 1996, Dang intentionally set fire to her
van, severely burning herself and her four-month-old son.
Meanwhile, the INS had been processing Dang’s application
for naturalization. On March 12, 1996, after Dang had set fire
to the van, Dang was interviewed under oath by an INS offi-
cer regarding her citizenship application. During the inter-
view, Dang was asked, “Have you ever knowingly committed
any crime for which you have not been arrested?” and Dang
answered in the negative. The INS approved her application
the same day. The next day, March 13, 1996, Dang was
arrested and charged with arson, willful injury to a child,
making a false report of a criminal offense, and two counts of
insurance fraud.
6182 UNITED STATES v. DANG
On April 3, 1996, Dang—out on bail—was administered
the oath of allegiance and admitted to United States citizen-
ship. As a prerequisite to naturalization, applicants were
required to complete questions on a Notice of Naturalization
Oath Ceremony Form N-455A. One of the questions on the
form asked: “After the date you were first interviewed . . .
have you been arrested, cited, charged, indicted, convicted,
fined or imprisoned for breaking or violating any law or ordi-
nance, including traffic violations?” Dang’s form was
checked “No” in response.

On September 30, 1996, Dang was sentenced to an eleven-
year term of imprisonment after being convicted of all
charges arising out of the February 2, 1996 incident.

Roughly five years later, on August 6, 2001, the govern-
ment filed a two-count complaint in federal court against
Dang for denaturalization on the basis that Dang’s citizenship
was “illegally procured” and “procured by concealment of a
material fact or by willful misrepresentation,” pursuant to 8
U.S.C. § 1451(a). As required by § 1451(a), the government
attached an “affidavit of good cause” for initiating denatural-
ization proceedings against Dang. The first count of the com-
plaint alleged that Dang falsely testified during her
naturalization interview, revealing a lack of good moral char-
acter, and therefore illegally procured citizenship. The second
count alleged that Dang willfully misrepresented her criminal
history both during the naturalization interview and on the N-
455A, thereby falsely procuring citizenship. Both counts were
based on Dang’s purported misrepresentations to the INS.

On December 18, 2002, the district court issued a Pre-Trial
Scheduling Order pursuant to Federal Rule of Civil Procedure
16. In accordance with Rule 16, the scheduling order provided
for the amendment of pleadings thenceforth only upon leave
of the court and a showing of “good cause.” See Fed. R. Civ.
P. 16(b).
 UNITED STATES v. DANG 6183
In October 2003—after learning of information that would
make it more difficult for it to prove its two
misrepresentation-based counts1—the government sought to
amend its complaint to include a third count, pursuant to 8
C.F.R. § 316.10(b)(3)(iii). Under this new Count III, the gov-
ernment would not be required to prove Dang’s willful mis-
representation to the INS. It would only need to show that
Dang committed unlawful acts—for which she was later con-
victed or imprisoned—during the statutory good moral char-
acter period. 8 C.F.R. § 316.10(b)(3)(iii). The district court
granted the government’s motion to amend the complaint pur-
suant to Rule 16(b) in November of 2003.

Dang then filed a motion to dismiss the government’s
amended complaint, arguing that it was barred by laches, was
not accompanied by a second affidavit of good cause, and
failed to state a cause of action. The district court denied this
motion in its entirety. The government then filed a motion for
summary judgment with regard to Count III of the amended
complaint. The district court granted the motion, finding that,
based on her commission of unlawful acts during the relevant
statutory period, Dang had not established the good moral
character required for naturalization. See 8 C.F.R.
§ 316.10(b)(3)(iii). The court entered judgment against Dang
that revoked Dang’s citizenship and cancelled her certificate
of naturalization.

II

American citizenship is “a right no less precious than life
or liberty, indeed of one which today comprehends those
rights and almost all others.” Klapprott v. United States, 335
U.S. 601, 616 (1949) (Rutledge, J., concurring). In order to be
naturalized, an applicant must demonstrate that he or she sat-
isfies the numerous statutory criteria of the Immigration and
1
Specifically, the government learned that it may have been Dang’s
daughter who filled out form N-455A, not Dang herself.
6184 UNITED STATES v. DANG
Naturalization Act, including the requirement that the appli-
cant “has been and still is a person of good moral character”
during the statutorily defined period of residency. 8 U.S.C.
§ 1427(a).

Because citizenship is a precious right, “once citizenship
has been acquired, its loss can have severe and unsettling con-
sequences.” Fedorenko v. United States, 449 U.S. 490, 505
(1981). Because of this, “the Government ‘carries a heavy
burden of proof in a proceeding to divest a naturalized citizen
of his citizenship.’ ” Id. (quoting Costello v. United States,
365 U.S. 265, 269 (1961)). “The evidence justifying revoca-
tion of citizenship must be clear, unequivocal, and convincing
and not leave the issue in doubt.” Id. (internal quotation marks
and citations omitted).

[1] The denaturalization statute, 8 U.S.C. § 1451(a), pro-
vides that denaturalization may be commenced if the citizen’s
naturalization was (1) “illegally procured,” or (2) “procured
by concealment of a material fact or by willful misrepresenta-
tion.” In order lawfully to obtain U.S. citizenship, a person
must be of “good moral character” for the five years immedi-
ately preceding the date of filing her citizenship application,
as well as from the date of filing this application until the date
she or he is admitted to citizenship. Under 8 U.S.C. § 1101(f),
a person shall not “be regarded as, or found to be, a person
of good moral character” if, within the statutory period, he or
she fell into any of seven enumerated categories.2 Section
1101(f) concludes: “The fact that any person is not within any
2
The categories are as follows: (1) a habitual drunkard, (2) an admitted
or convicted prostitute, smuggler, polygamist, moral turpitude criminal,
drug user as defined by statute, or drug trafficker (during the relevant good
moral character period), (3) gambler deriving substantial income from
gambling, (4) one convicted of two or more gambling offenses during the
statutory period, (5) one who gives false testimony for obtaining natural-
ization, (6) one who has been confined in a penal institution for more than
180 days during the statutory period, (7) one convicted of an aggravated
felony, at any time.
 UNITED STATES v. DANG 6185
of the foregoing classes shall not preclude a finding that for
other reasons such a person is or was not of good moral char-
acter.” Id. (“catch-all provision”).

[2] Pursuant to § 1101(f), the Department of Homeland
Security (subsuming the former Immigration and Naturaliza-
tion Service) promulgated regulation 8 C.F.R. § 316.10. The
regulation offers guidance to officials making moral character
determinations, stating as a general matter that “the Service
shall evaluate claims of good moral character on a case-by-
case basis taking into account the elements enumerated in this
section and the standards of the average citizen in the commu-
nity of residence.” 8 C.F.R. § 316.10(a)(2). Among those ele-
ments to be considered, the regulation restates the enumerated
categories of § 1101(f) in § 316.10(b)(1)-(2). Among those
“elements enumerated in this section” are the same seven cat-
egories as are listed in 8 U.S.C. § 1101(f), see 8 C.F.R.
§ 316.10(b)(1)-(2), as well as the following:

Unless the applicant establishes extenuating circum-
stances, the applicant shall be found to lack good
moral character if, during the statutory period, the
applicant . . . [c]ommitted unlawful acts that
adversely reflect upon the applicant’s moral charac-
ter, or was convicted or imprisoned for such acts,
although the acts do not fall within the purview of
§ 316.10(b)(1) or (2).

8 U.S.C. § 316.10(b)(3)(iii). The Supreme Court has required
“strict compliance with all the congressionally imposed pre-
requisites to the acquisition of citizenship. Failure to comply
with any of these conditions renders the certificate of citizen-
ship ‘illegally procured’ . . . .” Fedorenko, 449 U.S. at 506.
The government’s final theory, upon which the district court
granted summary judgment, was that Dang committed the
unlawful acts during the statutory period prior to naturaliza-
tion and, thus, her naturalization was illegally procured even
6186 UNITED STATES v. DANG
though the conviction for those acts did not occur until after
naturalization.

A

Dang argues that the regulation, 8 C.F.R. § 316.10(b)
(3)(iii), is ultra vires to the statute. In particular, Dang con-
tends that because § 1107(f)(3) specifically limits an unfavor-
able moral character determination based on criminal activity
to people who were convicted of—or had admitted to—the
relevant crime during the statutory good moral character
period, Congress has unambiguously prohibited adverse
“good moral character” findings based on conduct underlying
convictions that were entered outside the five-year good
moral character period.

In deciding whether an administrative agency’s regulation
is a permissive construction of the governing statute, we
employ the analysis set forth by the Supreme Court in Chev-
ron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-45 (1984), as further explained in Food &
Drug Admin. v. Brown & Williamson Tobacco Corp., 529
U.S. 120 (2000). Under Chevron, we must consider first
“whether Congress has directly spoken to the precise question
at issue.” 467 U.S. at 842. “If Congress has done so, the
inquiry is at an end; [we] ‘must give effect to the unambigu-
ously expressed intent of Congress.’ ” Brown & Williamson,
529 U.S. at 132 (quoting Chevron, 467 U.S. at 843). In mak-
ing that assessment, we not only look at the precise statutory
section in question, but we also analyze the provision in the
context of the governing statute as a whole, presuming con-
gressional intent to create a “symmetrical and coherent regu-
latory scheme.” Id. at 133 (quoting Gustafson v. Alloyd Co.,
513 U.S. 561, 569 (1995)). Finally, “we must be guided to a
degree by common sense as to the manner in which Congress
is likely to delegate [such an important] policy decision . . . .”
Id. If, after conducting such an analysis, we conclude that
Congress has not addressed the issue, we “must respect the
 UNITED STATES v. DANG 6187
agency’s construction of the statute so long as it is permissi-
ble.” Id. at 132 (citing INS v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999), and Auer v. Robbins, 519 U.S. 452, 457 (1997)).

[3] The key question in the present context is whether Con-
gress directly addressed the issue, or left a statutory gap for
the agency to fill. “In Chevron, [the Supreme] Court held that
ambiguities in statutes within an agency’s jurisdiction to
administer are delegations of authority to the agency to fill the
statutory gap in reasonable fashion.” Nat’l Cable & Tele-
comm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005). “Chevron’s premise is that it is for agencies, not
courts, to fill statutory gaps.” Id. at 982.

[4] Here, a plain reading of the statute indicates that Con-
gress intended to leave a statutory gap for the administrative
agency to fill. Section 1101(f)’s catch-all provision, stating
that “other reasons” can be considered in determining that a
person is not of good moral character, demonstrates a gap that
“Congress explicitly left for the agency to fill.” Chevron, 467
U.S. at 843. Therefore, given the statutory gap deliberately
established by Congress, the question before us is whether the
agency’s regulatory interpretation of the statute is permissible.
We conclude that it is.

[5] Denaturalization based on the commission of unlawful
acts during the statutory period is a permissible exercise of
congressional delegation. Because the authorizing statute cov-
ers conduct both legal and illegal,3 and literally invites the
agency to expand the list of acts warranting adverse moral
character determinations, see § 1101(f) (catch-all provision),
it cannot be reasonably argued that the regulation at issue here
3
The statute itself requires finding an applicant lacking in good moral
character if he or she is a habitual drunkard, see 8 U.S.C. § 1101(f)(1), or
has given false testimony in an immigration-related proceeding, see id.
§ 1101(f)(6), not to mention if he or she has been convicted of or has
engaged in particular types of illegal behavior.
6188 UNITED STATES v. DANG
is arbitrary or capricious. Thus, requiring consideration of an
applicant’s unlawful acts during the five-year moral character
period—whether or not the applicant is convicted for the acts
during that period—is not beyond the agency’s statutory man-
date. 8 C.F.R. § 316.10(b)(3)(iii) is entitled to Chevron defer-
ence and, therefore, is not ultra vires to the governing statute,
8 U.S.C. § 1101(f).4

B

[6] Dang also argues that the regulation is void for vague-
ness. “[A] party challenging the facial validity of [a regula-
tion] on vagueness grounds outside the domain of the First
Amendment must demonstrate that the enactment is imper-
missibly vague in all of its applications.” Hotel & Motel Ass’n
of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir.
2003) (internal quotation marks omitted). Of course, under
this rubric, if the statute is constitutional as applied to the
individual asserting the challenge, the statute is facially valid.
See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir.
2003).

[7] The statute is not unconstitutionally vague as applied to
Dang. “In examining a statute for vagueness, we must deter-
mine whether a person of average intelligence would reason-
ably understand that the charged conduct is proscribed.”
4
The Eleventh Circuit recently reached this very question, explaining
that a naturalized citizen “who committed certain unlawful acts during the
statutory period prior to taking the oath of allegiance but for which he was
indicted, arrested and convicted after naturalization stands to lose his pre-
cious acquisition for lack of good moral character.” United States v. Jean-
Baptiste, 395 F.3d 1190, 1191 (11th Cir. 2005) (emphasis in original).
That court expressly found that § 316.10(b)(3)(iii) was entitled to Chevron
deference, reasoning that the catch-all provision provided the agency with
significant deference. Id. at 1193-94. The court also noted that “this deter-
mination is supported by case law.” Id. at 1194 (citing DeLuca v. Ashcroft,
203 F. Supp. 2d 1276, 1279 (M.D. Ala. 2002); Jiminez v. Eddy, 153 F.
Supp. 2d 1105, 1107 (D. Alaska 2001).
 UNITED STATES v. DANG 6189
United States v. Williams, 441 F.3d 716, 724 (9th Cir. 2006).
Dang—convicted of arson, fraud and willful injury of a child
—intentionally set fire to her vehicle, severely burning herself
and her four-month-old son, with the specific intent to defraud
her insurance carrier. A person of ordinary capacity would
reasonably understand that those actions constituted “unlaw-
ful acts.” Cf. Posters ‘N’ Things, Ltd. v. United States, 511
U.S. 513, 515, 526 (1994) (holding anti-drug paraphernalia
statute was not unconstitutionally vague as applied to defen-
dant’s case when defendant operated a “full-scale ‘head
shop,’ ” selling items such as “pipes, bongs, scales, roach
clips, and drug diluents including mannital and inositol”
(footnotes omitted)). Therefore, Dang may not properly bring
a vagueness challenge to the regulation.

C

[8] Dang asserts that the regulation is impermissibly over-
broad. The overbreadth doctrine is inapposite to a case in
which First Amendment protections are not implicated. See,
e.g., Members of City Council v. Taxpayers for Vincent, 466
U.S. 789, 798-801 (1984) (noting the source of the over-
breadth doctrine was a recognition of “the deterrent effect on
free expression” under broadly written statutes and evaluating
potential overbreadth in the First Amendment context exclu-
sively). This constitutional claim must, therefore, also fail.

D

[9] Finally, Dang contends that, as applied to her, 8 C.F.R.
§ 316.10(b)(3)(iii) runs afoul of the Uniformity Clause of the
Constitution. The Uniformity Clause grants Congress the
power to “establish an uniform Rule of Naturalization.” U.S.
Const. art. I, § 8, cl. 4 (emphasis added). Dang argues that 8
C.F.R. § 316.10(b)(3)(iii) violates the Uniformity Clause
because acts that are unlawful in one state may be lawful in
another state due to the variations in state laws, thus making
the rule “not uniform” from state to state.
6190 UNITED STATES v. DANG
[10] To bring a successful facial challenge outside the First
Amendment context, “the challenger must establish that no
set of circumstances exists under which the [regulation]
would be valid.” United States v. Salerno, 481 U.S. 739, 745
(1987). As with Dang’s vagueness challenge, we need not
decide whether 8 C.F.R. § 316.10(b)(3)(iii) would withstand
a Uniformity Clause challenge in every context: 8 C.F.R.
§ 316.10(b)(3)(iii) is unquestionably constitutional as applied
to Dang. See United States v. Cheely, 36 F.3d 1439, 1443-44
n.10 (9th Cir. 1994) (“ ‘Embedded in the traditional rules gov-
erning constitutional adjudication is the principle that a person
to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may con-
ceivably be applied unconstitutionally to others, in other situ-
ations not before the [c]ourt.’ ” (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973) (alteration in original)).
Dang does not contend that the crimes of arson, willful injury
of a child, and fraud would be considered lawful in any
United States jurisdiction; thus, no uniformity concerns are
implicated in this case.

E

[11] In sum, 8 C.F.R. § 316.10(b)(3)(iii) is not ultra vires
to the governing statute and survives constitutional scrutiny as
applied to Dang.

III

[12] The district court did not abuse its discretion in grant-
ing the government’s motion to amend its complaint to
include the fatal third count. The government filed its two-
count complaint against Dang on August 6, 2001. Although
the court’s Pre-Trial Scheduling order was entered on Decem-
ber 18, 2002, the government moved to amend its complaint
to include Count III in October of 2003. Because the govern-
ment sought to amend its complaint well after the court issued
its Rule 16 scheduling order, the government was required to
 UNITED STATES v. DANG 6191
demonstrate “good cause” for modifying the order. See Fed.
R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 608 (9th Cir. 1992).

[13] To support her claim, Dang points out that the facts
and theories underlying Count III were available to the gov-
ernment since the inception of the action. We agree with this
assertion and conclude that the district court could have prop-
erly denied the motion to amend on this basis. The district
court did acknowledge that the government was able to bring
the claim earlier in the proceedings and indicated its disap-
proval with the government for not doing so.5 Nevertheless,
the court granted the motion based on an overall evaluation of
“[t]he rights of the parties, the ends of justice, and judicial
economy.” We cannot say that this was an abuse of discretion.
Indeed, “the district court is given broad discretion in super-
vising the pretrial phase of litigation, and its decisions regard-
ing the preclusive effect of a pretrial order . . . will not be
disturbed unless they evidence a clear abuse of discretion.” Id.
at 607 (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364,
369 (9th Cir. 1985)).

IV

Nor did the district court err by allowing the government to
file the amended complaint without submitting a supplemen-
tary affidavit of good cause. Under 8 U.S.C. § 1451, the gov-
ernment is required to submit an affidavit of good cause to
institute naturalization proceedings against a naturalized citi-
zen. 8 U.S.C. § 1451(a). Conceding that the original com-
plaint was filed with a proper affidavit, Dang argues that the
5
We note, however, that new facts came to the government’s attention
shortly before it moved to amend its complaint in the form of the deposi-
tion of a late-identified witness, Dang’s daughter, Rachel Nguyen, who
was not made available for her deposition until after the Pre-Trial Confer-
ence. Nguyen testified that it was she, and not Dang, who filled out the
answers on Dang’s Form N-455A.
6192 UNITED STATES v. DANG
government’s amended complaint should have included a sec-
ond, supplementary affidavit of good cause.

An affidavit of good cause is only required at the initiation
of a denaturalization proceeding. See 8 U.S.C. § 1451(a) (“It
shall be the duty of the United States attorneys for the respec-
tive districts, upon affidavit showing good cause therefor, to
institute proceedings . . . .” (emphasis added)); United States
v. Zucca, 351 U.S. 91, 100 (1956) (announcing the principle
that the affidavit showing good cause is “a prerequisite to the
initiation of [denaturalization] proceedings” (emphasis
added)). This reading of the statute is consistent with its pur-
poses. The Supreme Court has noted: “Even if his citizenship
is not cancelled, his reputation is tarnished and his standing
in the community damaged. Congress recognized this danger
and provided that a person, once admitted to American citi-
zenship, should not be subject to legal proceedings to defend
his citizenship without a preliminary showing of good cause.”
Id. at 99-100. By the time the amended complaint was filed,
the denaturalization proceeding had already commenced;
Dang’s reputation had been compromised and the preliminary
showing of good cause had been made.6
6
We should also note that any hypothetical supplementary affidavit of
good cause would be substantially identical to the one originally filed. The
affidavit submitted by the government stated:
[O]n February 2, 1996, approximately one month before her nat-
uralization interview, Ms. Dang committed the crimes of arson,
willful injury to a child, and filing a false report of a criminal
offense. Additionally, between February 2, 1996 and April 15,
1996, Ms. Dang committed the crime of making false or fraudu-
lent claims or statements.
This very allegation remained the basis of the government’s amended
complaint, which added Count III for committing “unlawful acts” during
the good moral character period.
 UNITED STATES v. DANG 6193
V

Dang’s laches defense must also fail. It remains an open
question in this circuit as to whether laches is a permissible
defense to a denaturalization proceeding. Dang relies on Cos-
tello, the most recent Supreme Court case to examine the
question. Although noting that laches is not, as a general mat-
ter, a defense against the sovereign, Costello reserved judg-
ment on the applicability of the defense to a denaturalization
action. 365 U.S. at 281. The Court held: “[E]ven if we assume
the applicability of laches, we think that the petitioner failed
to prove both elements which are necessary to the recognition
of the defense.” Id. at 282. As in Costello, we hold that even
assuming that laches is a permissible defense, Dang did not
make out the required elements of the defense.7

[14] “Laches requires proof of (1) lack of diligence by the
party against whom the defense is asserted, and (2) prejudice
to the party asserting the defense.” Id. at 282. Dang has not
shown a lack of diligence on the part of the government. She
argues that the government was dilatory because it filed its
initial complaint five years after Dang’s naturalization and
convictions. However, the government was working to denat-
uralize Dang administratively until this court’s decision in
Gorbach v. Reno, which held that the Attorney General
lacked statutory authority to revoke citizenship through
administrative denaturalization proceedings. 219 F.3d 1087,
1092-98 (9th Cir. 2000) (en banc). Soon thereafter, the gov-
ernment filed its complaint in federal district court. Further,
7
Other courts—including district courts within our circuit—have inter-
preted Costello as actually foreclosing applicability of the defense. See,
e.g., United States v. Mandycz, 447 F.3d 951, 965 (6th Cir. 2006) (“the
‘primary holding’ of Costello, we have already decided, is that ‘laches [is]
inapplicable,’ ” (quoting United States v. Weintraub, 613 F.2d 612, 618-19
(6th Cir. 1979))); United States v. Wang, 404 F. Supp. 2d 1155, 1158-59
(N.D. Cal. 2005); United States v. Shuck, 565 F. Supp. 613, 615 (E.D. Pa.
1983). Because Dang fails to assert a viable laches defense, we do not
resolve the question here.
6194 UNITED STATES v. DANG
most denaturalization proceedings are instituted beyond the
five-year period Dang argues is objectionable. See, e.g., Cos-
tello, 365 U.S. at 268 (claim brought 27 years after naturaliza-
tion); Kungys v. United States, 485 U.S. 759, 764 (1988) (34
years); Fedorenko, 449 U.S. 490, 497 (1981) (7 years). The
government was adequately diligent in bringing suit; Dang
cannot assert a successful laches defense.

AFFIRMED.